Question: Upon my return from a ten-day business trip, my wife had me served with divorce papers that contain outright fabrications. We have been married for 17 years and have two children, ten and 12. What upset me the most were the affidavits signed by my two sons that say untrue things about me. My lawyer told me that the judge could consider these statements at the first hearing, but that we will get to the bottom of it during the proceedings. From what I have heard, “proceedings” can last a long time and cost a lot of money. In the meanwhile, I may be kept from visiting with my children for months. I feel that I am at an immediate disadvantage all the way around. Is this how custody and visitation are decided?
Answer: While children may express their preferences regarding custody and visitation during matrimonial proceedings, judges are not bound by their choices, and few confirm a child’s wishes without first requiring an independent review of the facts and circumstances.
In all states, "the best interests of the child” is the cornerstone of the custody and visitation decision-making process. By weighing the evidence presented, a judge determines who will have custody and what kind of visitation the non-custodial parent will receive. While the desires of a child are certainly a factor, the court must look at much more in determining which parent will best provide for the child’s physical and emotional well-being. Implicit in the decision-making process are the relative fault of each parent, the stability of each parent’s home life, and which parent has the better plan of custody.
However, the older the child, the more weight may be given to his or her preference. In some states, the appropriate “age” is 12 or older. Under some circumstances, a younger child’s preference may be considered. The judge may decide to have an “in camera” – or private interview – with the children.
While your children’s affidavits may be considered by the court so long as the child is determined to be legally capable of making such an important pronouncement, the question that remains is whether he or she was competent to comprehend what he or she was doing when the affidavit was signed.
In our view, a matrimonial lawyer who communicates with a child of tender years in the midst of a contested action is playing with fire. We believe that under the circumstances as you describe them, the court would take a dim view of actions like this that make the child a pawn in the proceedings. After all, common sense tells us that your children did not wake up one day and decide to sign an affidavit saying that you are a bad person. In point of fact, your children may have signed the papers without a proper explanation of their significance. They might have been promised a trip to Disney World or a movie or been given a bicycle. This, in our view, puts a significant burden on both your wife and her lawyer, especially where you had not seen your children for ten days and your spouse and her attorney had sole access. In situations like this, lawyers become witnesses, and guardians-ad-litem should be appointed to represent the interests of the children, and the Court should consider a private meeting with the children to determine how the affidavits came about.
